Are you considering a divorce or separating from your spouse or partner? Separation is a challenging time, often fraught with tension.
Along with the emotional turmoil, property division and financial support arrangements must be worked through. When children are involved, things can get even more complicated.
This Q&A article will answer six common questions we receive from clients looking to take this step.
Q: What is the process for a legal separation/divorce?
Let’s set aside the terminology popularised in American movies – a ‘divorce’ in New Zealand is known as a dissolution. To formalise the end of your marriage or civil union in New Zealand, you must get an order from the court to dissolve the marriage/civil union. The only ground for dissolution is that there are irreconcilable differences between you and your spouse, and you must have been separated for at least two years. This process is easy to manage, so if you are at the two-year mark, give us a call, and we can point you in the right direction.
The process for a legal separation, however, can begin much sooner. We often speak with clients in the pre-separation stage to provide advice and give them the tools to start this process themselves with confidence. No two relationships are alike, and the same goes for the separation process. This will look different depending on your relationship’s circumstances and the relationship breakdown. Our family lawyers have experience with all manner of separation and child care issues, so you can be sure we’ve got the right advice for your unique situation.
Q: Who gets to keep the house?
There is no black and white answer to this question. Typically this is worked out by agreement.
Many factors come into play, including children, any difference in income between partners and practical arrangements (e.g. alternative accommodation options).
If you’re unable to agree and staying in the same house is untenable, you should obtain legal advice about your options.
Q: What financial support can I receive/do I need to provide?
Whether one partner needs to support the other financially following separation will depend upon various factors. Spousal maintenance may be payable whether there are children or not. Upon separation, if one partner is left in a position where they cannot meet their reasonable needs, the other partner will need to continue supporting them financially (so long as that person can pay). There is no defined period in our law, and the person’s lifestyle who requires maintenance will be relevant to the amount that needs to be paid. Reaching an agreement and obtaining advice on this issue early on is essential.
Also, if there are children of the relationship, one parent may be liabile to pay child support. Child support is payable until a child turns 18 (or 18 and still at school until they finish school). Child support is calculated having regard to the age of the children, each parent’s income and the care arrangements for the child/children. You can access the child support liability calculator on the IRD website at www.ird.govt.nzchildsupport/calculator-child-support-liability-entitlement.
Q: Who has to pay house expenses and childcare while sorting things out?
This will depend upon who can pay, who remains in the home, what each party earns and whether child support and spousal maintenance are payable.
If you have a mortgage, it may be possible to negotiate a ‘mortgage holiday’ with your bank or interest-only payments for a period to make financial matters a little more comfortable while separation issues are resolved.
Q: Do we have to share the care of the children equally?
It is up to parents/guardians to agree on care arrangements that work best for their children. What works for children in one family may not work for another. For some children, equal shared care works well, and for others, it is a disaster. Much will depend on the age of the children, their relationship with each parent and practical arrangements such as parents and children’s commitments/activities.
If shared care is an option, there are many different ways this can work. It doesn’t have to be a week about.
If you cannot agree on care arrangements, you can try Family Dispute Resolution Mediation and the Parenting Through Separation programme. For further information, go to www.justice.govt.nz/family/care-of-children/
You may also want to seek legal advice about childcare and guardianship matters so that you are fully informed.
Q: Do I need a lawyer?
To have a binding agreement recording the division of your relationship property, yes, you will both need to have independent legal advice (different lawyers from different firms).
That doesn’t stop you from negotiating an agreement between yourselves. However, you will need to receive independent legal advice to ensure the agreement is binding and sign the agreement with your lawyers.
If you are negotiating, it is good to obtain legal advice early on about your rights, obligations, and the process so you are fully informed throughout all stages.
FOR MORE INFORMATION
If you are considering getting a divorce or are separating, getting early legal advice will ensure that you are well-informed about your rights and obligations.
Morrison Kent’s expert family lawyers can assist with all aspects of the separation process. We listen to your needs, explain the law and legal processes in plain language and consider practical solutions to achieve the best outcome. We aim to help clients resolve their matters outside of court; if that is not possible, we also have the expertise to represent clients throughout the court process.
Feel free to contact one of our family lawyers to discuss your situation and book an initial consultation:
- Debbie Dunbar | 04 495 9940 | email@example.com
- Maretta Twentyman | 04 495 8918 | firstname.lastname@example.org
- Anna Chapman | 04 495 8905 | email@example.com
- Annabel Sanders | 04 495 8927 | firstname.lastname@example.org
- Olivia Lynch |07 349 7484 | email@example.com
- Claudia Leathart | 04 886 2665 | firstname.lastname@example.org
- Louise Curran | 04 495 8915 | email@example.com
- Jennah Terlesk | 07 808 1700 | firstname.lastname@example.org